Opinion, please: An invasion of privacy?

26 thoughts on “Opinion, please: An invasion of privacy?”

1. This is absolutely an invasion of privacy. What does private property really mean if the government can do these sorts of things? It makes you feel as if we’re just renting property from the government, which is a blatant violation of our founding documents (life, liberty and property)…

2. Immovable object (4th Amendment) meets irresistable force (Endangered Species Act)?

3. Funny, he doesn’t dispute breaking the law.

   There appears to be a caselaw difference between a home and an open field as property.

4. It’s a violation of the fourth amendment. I don’t care if it’s outdoors or indoors. The tree they placed the camera in was on his property. I also don’t care about the case law. There used to be plenty of case law supporting Jim Crow laws, but the case law was wrong. The government has become too brazen about violating the fourth amendment, because we have allowed them to do so, as long as their unconstitutional fishing expeditions turned up some evidence of a law that was broken. If they can do this, there is no fourth amendment.

5. Hester v. United States: “As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their “person, houses, papers and effects,” is not extended to the open fields. The distinction between the latter and the house is as old as the common law.” 265 U.S. at 58-59.

   Quoting from my handily available “Criminal Procedure for the Criminal Justice Professional”, 9th edition, p. 477:

   The open fields doctrine allows law enforcement officers to search for and seize evidence in the open fields without a warrant, probable cause, or any other legal justification. Even if officers trespass while searching the open fields, the trespass does not render the evidence inadmissible. Oliver v. United States, 466 U.S. 170 (1984). Furthermore, officers are not civilly liable for trespass if the trespass was required in the performance of their duties. Giacona v. United States, 257 F.2d 450 (5th Cir. 1958 )

6. I’ll say it again. The case law makes it no more right than all the case law in support of Jim Crow. Our rights are not taken away by laws. Our rights are violated and attenuated by such laws.

7. Fine then, Rick:
   I’ll say it again. The case law makes it no more right than all the case law in support of abortion. Our rights are not taken away by laws. Our rights are violated and attenuated by such laws.

8. I’ll go with 4th Amendment violation. This is reminiscent of the “sneak and peak” searches allowed by the Patriot Act. I’m pretty sure that this guy isn’t a suspected terrorist, so it’s even worse.

9. It’s a violation of the 4th.

10. Timothy,

    What constitutes an open field? This doctrine sounds like it would make it very easy for officers to violate the spirit of the law while following the letter… am I wrong?

    I can’t speak to the legality of VanKesteren’s camera situation, but on the right/wrong scale, the game wardens are wrong to be on his property without having to take it to a judge beforehand. The law should not allow this.

11. Perhaps you guys should try actually reading the court opinion. You might actually learn something. It’s frankly amazing how everyone here seems to think they’re experts on constitutional law (note that no point have I said that I’m an expert). If only the folks on the internet were as smart as they thought that are:

    A.

    Vankesteren largely conceded in oral argument that the VDGIF placed its camera in a constitutionally unprotected open field, but a review [*5] of the Supreme Court’s open-fields doctrine is nonetheless essential to our consideration of this case. In Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924), the Supreme Court first held that HN2Go to this Headnote in the case.the protection of the Fourth Amendment did not extend to open fields. In that case, revenue officers went to Hester’s house and observed an illegal moonshine transaction from fifty to one-hundred yards away on Hester’s land. Id. at 58. The Court found no Fourth Amendment violation. Id. at 59.

    The open-fields doctrine was clarified in Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). There, the Supreme Court considered two cases in which marijuana was being grown in wooded areas on the defendants’ properties. In one instance, the police walked around a locked gate with a “No Trespassing” sign, passed a barn and parked camper, and continued after someone shouted at them to leave. A mile from the defendant’s house, they found the marijuana field. Id. at 173. In the other case, police followed a path between the defendant’s residence and the neighboring house into the woods until they saw two marijuana patches surrounded by chicken wire. Upholding both searches, the Court held that HN3Go to this Headnote in the case.”an individual may not [*6] legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home [the curtilage].” Id. at 178. The Court further noted, “An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech. For example . . . a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.” Id. at 180 n.11.

    In United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the Supreme Court considered a case that involved property that was approximately fifty yards from the main residence and on which officers took the following actions:

    [They] crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns–crossing over a barbed wire fence–and, looking into the barn, observed only empty boxes. The officers then proceeded to the larger barn, crossing another barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under [*7] the barn’s overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn.

    Id. at 297-98. Once more, the Court found that there was no Fourth Amendment violation. Id. at 301.

    HN4Go to this Headnote in the case.The Dunn Court established four factors to consider when resolving questions about the boundaries of curtilage: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” Id. at 301; accord United States v. Breza, 308 F.3d 430, 435 (4th Cir. 2002). Applying the factors, the Court found that the barn was sixty yards from the house, it was outside the fence surrounding the house, police had objective data–aerial photographs–that showed the barn was not being used for intimate activities, and there was no indication that the interior fences were designed to keep people out. Dunn, 480 U.S. at 302-03.

    Given the facts of these Supreme Court decisions, Vankesteren has little on which to base his case. Vankesteren’s fields were located a mile [*8] or more from his home, the land was being used for farming and not intimate activities, VDGIF had received a report of a trapped protected bird, and there is no indication in the record that Vankesteren had taken any steps to protect his field from observation. Therefore, under the Supreme Court’s jurisprudence, the subject land must be classified as open fields and not curtilage, and Vankesteren has no reasonable expectation of privacy in those open fields.

    As noted previously, Vankesteren has essentially conceded this point. Vankesteren instead stakes his case on the argument that hidden surveillance cameras are subject to a higher degree of Fourth Amendment scrutiny. He cites cases in support of that proposition; yet, none of these cases involve open fields where the defendant presumably has no reasonable expectation of privacy.

    In United States v. Taketa, 923 F.2d 665 (9th Cir. 1991), the Ninth Circuit found that a DEA agent had a reasonable expectation of privacy in his office, and that expectation was violated through the use of hidden video surveillance. In so finding, however, the court noted, “Video surveillance does not in itself violate a reasonable expectation of privacy. [*9] Videotaping of suspects in public places, such as banks, does not violate the fourth amendment; the police may record what they normally may view with the naked eye.” Id. at 677. In United States v. Nerber, 222 F.3d 597 (9th Cir. 2000), the Ninth Circuit suppressed hidden video surveillance, but did so because it found that drug dealers had a legitimate expectation of privacy in their hotel room after police informants left.

    The Fifth Circuit considered a closer case in United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987). There, the police placed a camera on top of a power pole overlooking the defendant’s ten-foot-high fence surrounding his back yard. The court found that the defendant had a reasonable expectation of privacy that would have been violated because the fence surrounded his curtilage. However, because the police properly obtained a court order for the surveillance, the court affirmed his conviction. Id. at 251-52. This case also does not help Vankesteren because VDGIF’s camera was not placed within or even near the curtilage of his home.

    Vankesteren then attempts to distinguish his case from United States v. McIver, 186 F.3d 1119 (9th Cir. 1999), the most directly [*10] relevant case on this issue. In that case, law enforcement agents placed unmanned, motion-activated surveillance cameras onto land in a national forest in order to monitor a patch of marijuana plants. The agents used the footage from the cameras in order to identify and track down the defendants in the case. The court held that the placement of the cameras on public land, open to all, did not violate the defendants’ Fourth Amendment rights. Id. at 1125-26.

    While McIver involved public land and this case involves private land, the effect is still the same: just as one would not have a reasonable expectation of privacy in a national forest, the foregoing cases demonstrate that Vankesteren had no reasonable expectation of privacy in the open fields where he killed the hawks. Those fields were located a mile or more from his home, near a public road, and as evidenced by the phone call reporting the trap, the land was accessible to other members of the public. Vankesteren notes that he felt comfortable enough to relieve himself there, but that is of no consequence under our jurisprudence. 1

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    1 Indeed, if Fourth Amendment protection were to be predicated upon where one felt comfortable enough [*11] to eliminate, our search and seizure jurisprudence would be turned on its head.

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    The idea of a video camera constantly recording activities on one’s property is undoubtedly unsettling to some. Individuals might engage in any number of intimate activities on their wooded property or open field–from romantic trysts under a moonlit sky to relieving oneself, as in Mr. Vankesteren’s case–and do so under the belief that they are not being observed. But the protection of the Fourth Amendment is not predicated upon these subjective beliefs. “[O]pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.” Oliver, 466 U.S. at 179. Anyone could have walked onto Vankesteren’s property, including a VDGIF agent, and observed his traps. Under our jurisprudence, VDGIF could have stationed agents to surveil Vankesteren’s property twenty-four hours a day. See id. at 178-81; McIver, 186 F.3d at 1125. That the agents chose to use a more resource-efficient surveillance method does not change our Fourth Amendment analysis.

    Since Vankesteren had no legitimate expectation of privacy, the agents were free, as on [*12] public land, to use video surveillance to capture what any passerby would have been able to observe. As the Supreme Court noted in Dow Chemical Co. v. United States, 476 U.S. 227, 238, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986), when it was assessing the constitutionality of aerial surveillance by the EPA:

    It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. . . . [But t]he mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems.

    (internal footnote omitted). Likewise, the placement of a video camera in an open field does not portend the arrival of the Orwellian state that the appellant would have us fear. We are not dealing in this case with a camera that took, for instance, thermal images of Vankesteren’s home 2 or that was equipped with an automatic guidance system that allowed it to roam about Vankesteren’s property, possibly into protected Fourth Amendment areas. Instead, this camera was in a fixed location, was focused on a limited area of Vankesteren’s [*13] fields, was activated only by motion, and recorded only during the daylight hours. Essentially, the camera did little more than the agents themselves could have physically done, and its use was therefore not unconstitutional.

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    2 See Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

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12. In case you don’t understand, Timothy, I’m saying that I disagree with the case law. That’s not so difficult to comprehend is it?

13. Fine then, you’re a moron instead of an ignoramus. Congrats.

    How about we require warrants before police can enter a home to respond to a call (be it a domestic situation or whatever)? That way no one will be arrested for something that is found in plain view at the residence.

    After all, those folks have a right to privacy and whatnot.

14. You know, Timmy, idiots like you who think that they are clever are the most tiresome of people. If you are not able to see the difference in this case and that which you posit, you may want to do a bit more thinking on the subject – if you’re up to it. I think I hear your mommy calling – you should along now, kiddo.

15. If it’s an emergency, there’s no need for a warrant. The law allows for exceptions where there’s no time to get a warrant.

    I understand this is apparently the caselaw, but the question is whether it SHOULD be the caselaw.

    No.

    The game wardens had probable cause, why didn’t they just get a warrant, and avoid this whole problem?

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